In her column in the East Bay Business Times, “Legal Report: Avoid litigation that will keep you awake at night,” Barbara Grady used my expertise in the section on handling bullies in the workplace. To read this section of the article, click here Legal report: Avoid litigation that will keep you awake at night
East Bay Business Times, Friday, October 10, 2008 - by Barbara Grady
There are more than a few things that can keep employers awake at night these days. But with a bit of advice from East Bay legal experts, you can take steps to avoid some of these problems, whether it is bullies in the workplace, mistakenly hiring a felon or dealing with employees who spread trade secrets. The five areas covered in this Legal Report focusing on avoiding litigation can be legal quagmires for employers, because laws governing them are ever-changing or have not been well established.
Handling bullies in the workplace Too bad not every child learns that bullying is unacceptable. Instead, some grow up to be bullies. In fact, adults bullying co-workers and subordinates in the workplace “is a tremendous problem,” occurring in at least half of all employment places, says Ben Leichtling of the consulting firm Leichtling and Associates, LLC in Denver and author of “Bullies Below the Radar: How to Wise Up, Stand Up and Stay Up” and other books on the workplace.
In times of economic stress – like now – belligerent behavior can surface in seemingly even-keeled individuals. So companies need to watch for tensions among employees and incidents of bullying as the nation rides through the current economic rough patch.
If they don’t, warns attorney Darci Burrell of the Oakland law firm Boxer Gerson LLP, they could be liable for workers’ compensation claims or harassment claims from victims who endured the bullying. Moreover, employers stand to lose in productivity, workplace morale and eventually profits, Leichtling said.
“It might not be illegal for employers to ignore bullying, but it is not smart,” Burrell said.
Indeed, U.S. Department of Labor studies have quantified productivity loss from bullying, while the National Institute of Occupational Health and Safety found in a survey that one-quarter of public and private workplaces have experienced bullying in the workplace.
There are no federal or state statutes forbidding bullying in the workplace, however, so how do you deal with it?
In the absence of codified law forbidding bullying, Leichtling and Burrell both recommend that employers establish in-house rules that state what behavior is acceptable and what is not acceptable – and then training people in those policies.
“Generally having policies in place, a good comprehensive policy in place that tells employees what kind of conduct is prohibited and tells people what to do if that policy is violated is what works. The problem is lots of companies have policies, but they don’t train their people in those policies,” Burrell said.
Leichtling in his consulting work with companies always recommends that they specify in writing what behaviors are expected and what are not accepted, and then set up a process for documenting behaviors that are in violation.
“They have to be specific, like no throwing things, so they can be observed and documented. And they have to be behaviors, not attitudes, because you can’t document attitudes. You can document James yelling and screaming on such and such a date,” Leichtling said.
“Documentation must be practiced across the board, as part of performance evaluations, so one person does not feel singled out or the target of discrimination,” Leichtling said.
Bullying can include speaking in degrading terms to a co-worker or subordinate, threatening, and even less-overt behavior like repeated gossiping about one person, Leichtling said. Once documentation occurs and builds – as it usually does because bullies repeat their behavior – the offending bully usually chooses to leave, Leichtling said, because he or she can’t stand the negative limelight. Problem solved.